Jammie Thomas Might Get Another Chance

You might remember Jammie Thomas, the Minnesota woman who lost a court case over music sharing and was ordered to pay the recording industry $222,000 for copyright violations related to sharing songs. Despite the fact that it was never proven that she downloaded any songs, she was convicted of sharing the songs from her PC. Ah, but they also never proved that anyone had in fact downloaded anything from her PC, which is the crux of the matter.

On Friday the Electronic Frontier Foundation filed a brief the court's ruling should be overturned because of erroneous instructions to the jury.

The headline here should be: EFF to court: Jammie Thomas judge was a dolt. At the time, the instructions the jury heard posited the following:

The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown.

But that was a mistake, according to the EFF (and a lot of copyright specialists who have since weighed in on the verdict.) Again, from the EFF submission:

The plain language of the Copyright Act and applicable precedents mandate that an infringement of the distribution right requires the unauthorized, actual dissemination of copies of a copyrighted work--a completed act of transfer. To permit a finding of distribution liability based on anything less would be to transform section 106(3) into an unbounded form of civil attempt liability, even where no copies had ever been distributed and thus no harm had ever been inflicted on the copyright owner.

That has been a question since this ruling was handed down. If no one ever uploaded anything, is there an actual crime? In fact, Judge Michael Davis himself requested briefing on whether Thomas should receive a new trial. So he himself is questioning his past actions (dolt or not). We may be seeing a new trial for Thomas after all.